Williams HR Law LLP

Texting on Company Time

March 22, 2011

Earlier this month the Toronto Transit Commission terminated the employment of three of its drivers who were caught texting on their mobile devices while on duty behind the wheel. This conduct is contrary to both the Ontario Highway Traffic Act banning the use of mobile devices while driving and TTC company policy against distracted driving. This case and others like it involving the inappropriate use of mobile technology illustrate the new challenges employers’ face where employees are making phone calls, texting , or using other types of applications on their mobile devices while on company time.  The main concerns for an employer are loss of productivity and safety concerns.

As is usually the case, a well-crafted policy is the best way for an employer to deal with the issue of regulating the use of these devices at the workplace. Employers must be realistic in their approach, according to the Canadian Wireless Telecommunications Association there are over 24 million cell phones in Canada meaning that somewhere in the range of 70% of the population owns a cellphone and so an outright ban of cell phones from the workplace is in most cases not a practical solution and one that would not be well received by the modern day employee. Instead, an employer should consider under what circumstances the use of mobile technology during working hours should be permitted, if at all, and then clearly communicate that policy to the employees.

Individuals employed as drivers for an employer present a unique challenge. Often times these employees require the use of a mobile device to stay in contact with their employer, fellow employees, customers or clients. Therefore, an employer may want to consider allowing more liberal use of mobile technology for these employees keeping in mind that section 78.1 of the Ontario Highway Traffic Act bans the use of hand-held wireless communication devices while driving except where a hands-free device is used. (Employers engaged in emergency or commercial trucking operations may be exempt from the application of this law). A good policy should provide drivers with clear protocols for placing and receiving calls while driving and these employees should sign an acknowledgement that they have read, understood and agree to the policy. An employer should also be mindful not to reprimand a driver who does not answer a call while on duty.

Situations where safety may be of concern are where employees are engaged in duties where a lack of attention presents a safety risk to the employee or to others. For example, manufacturing plants with automated machinery require employees to be aware of their surroundings at all times to protect their own safety. Similarly, employees responsible for supervising children, if distracted, may expose those under their care to a safety risk. In these examples, a hardline approach banning the use of cell phones at the workplace is more acceptable but be sure to provide a phone in a safe location that can be used during breaks for these employees to make necessary phone calls.

As the technological landscape progresses, new realities of modern day life penetrate the workplace and present new challenges to the employer.  The prominence of mobile devices is certainly one example, but with thoughtful planning and sound policy an employer can ensure that it’s business as usual at the workplace.

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.